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The National Council got the authority to cancel the licenses for broadcasting without court decision

The unexpected legal norm initiated by the Committee of state construction and local self-rule endangers the work of TV companies during the election.

The Law adopted on 15 May by the Parliament stipulates the right of the Central and district voting commissions to present this question to the National Council in charge of TV and radio broadcasting. This unexpected legal norm initiated by the Committee of state construction and local self-rule endangers the work of TV companies during the election.

Theoretically, this law should change only the norms that contradict the law on election adopted earlier. Yet, it has another role too. Adopting this law, the deputies, in fact, created heavy work conditions for Ukrainian TV and radio organizations during the election campaigns and referendums.

Along with the “usual” changes, the law contains the interpretation of Article 28 of the Law of Ukraine “On TV and radio broadcasting”, which stipulates the activities of TV and radio organizations connected with election process or the process of a referendum. And here we have some pitfalls.

The discussed changes concern the activities of TV and radio organizations not only during the election of peoples deputies. This law stipulates the activities of TV and radio companies during any elections or referendums.

This law gives the additional authorities to the National Council in charge of TV and radio broadcasting related to the control of the fulfillment by the TV and radio organizations of the laws on election. The Council also got the authority “to canceltemporarily (until the end of the election process) the licenses for the use of broadcasting channels on the application of Central Voting commission or district (territorial) voting commissions”.

This norm is rather surprising, since is contains a great number of contradictions and inexactitudes.

First, this norm contradicts Article 32 of the Ukrainian Law “On the National Council in charge of TV and radio broadcasting”, which stipulates the rights of the Council and the sanctions that it may apply. This article envisages the possibility “to cancel temporarily (for the term up to two months) the licenses for the use of broadcasting channels (this measure is used after the application of other punishment measures, except the cases of violation of the demands of part 2 Article 2 of the Law of Ukraine “On TV and radio broadcasting”)”. I want to remind that the election process lasts for 90 days, which is more than two months. Moreover, the mentioned exception has no connection with the election laws. It should be also said that the Law of Ukraine “On election of peoples deputies of Ukraine”, as well as other laws, does not give the right to the voting commissions to turn to the National Council with the applications about applying sanctions. According to part 2 Article 19 of the Ukrainian Constitution, “the organs of state power, organs of local self-rule and their officers must act only on the basis and in the framework of their authorities using the methods envisaged by the Constitution and laws of Ukraine”. So, the presented norm of the Law does not agree with the Constitution too.

Secondly, according to this Law, the National Council may cancel the licenses “in case of transmitting the features that contain the information, the distribution of which is prohibited by the laws on election”. This provision violates one of the fundamental principles of bringing to responsibility: any violation must be defined exactly. Here the legislators refer to three laws that stipulate the procedure of election of the President, deputies and organs of local self-rule. It is absolutely incomprehensible which information is prohibited for distribution by the law on election and what law is meant. So, it is also incomprehensible what information being distributed may result in the temporary cancellation of the license, although some information of this kind is defined in Article 56 of the Ukrainian Law “On election of peoples deputies”, which envisages the restrictions during the pre-election agitation. Yet, there are no exact definitions. Thus, the TV and radio organizations do not know for which actions they may be punished. So, they cannot avoid the illegal actions. Such formulation will inevitably result in the misuses on the side of state organs and officers, as well as in the self-censorship of TV and radio companies during the elucidation of election process or referendum.

The probability of the censorship also increases because the responsibility is envisaged for the contents of information, but not for the methods of its distribution. Therefore, for instance, the refusal to spread the agitation materials, political advertisement on the eve of election or other similar abuses are the procedural ones, and the punishment sanctions for them are imposed by court.

Thirdly, the state organs got one more tool of pressure upon TV and radio organizations of Ukraine during the election process, because now they have the right to cancel the licenses. The operating version of the law, unlike the newly adopted one, states that the temporary cancellation of the license may be realized only “after a court decision, except the cases of transmitting the features that directly appeal for the overthrow of the constitutional order or violation of the territorial integrity of Ukraine”. Here all is defined exactly and understandably. Now we have the situation, when the National Council may cancel the license for spreading some information, which is not clearly defined. This is a good opportunity to exclude the opposition TV and radio organization from the election process. And the National Council, in its turn, becomes a political organ.

Fourthly, this norm again does not agree with European standards in the sphere of TV and radio broadcasting. One of the main principles of independent electronic mass media is the complicacy of the procedure of cancellation the licenses. The sanctions in the form of temporary or complete cancellation of the license may be applied in democratic countries only for numerous (systematic) brutal violations of laws and only after the application of other, less strict, measures. The discussed legal norm envisages the responsibility for the one-time violation of a vague clause of an obscure law.

Finally, this norm does not blend with the general structure of the Ukrainian legislation. The Law of Ukraine “On information” is the basic legal act in the informational sphere. So, this very law should contain the list of information, the distribution of which is prohibited, and the sanctions should be applied for violating this law.

Besides, the discussed norm states: “The activities of TV and radio organizations may be temporarily cancelled after the court decision in the cases envisaged by laws on election”. This provision is absolutely incomprehensible. What is the meaning of the phrase “the activities… may be temporarily cancelled”? It is more or less understandable how the license may be cancelled, but it is difficult to understand what this formula means. One may only guess what the legislators wanted to say. Maybe, it is possible to cancel the work of a TV and radio organization as a subject of entrepreneurial activities. Yet, the Ukrainian laws do not envisage the right of state organs to temporarily cancel the activities of juridical persons. Besides, the laws on election contain no grounds for canceling the activities of TV and radio organizations.

The newly adopted law also widens the sphere of responsibility of the TV and radio organizations for spreading the information, which is contained in the speeches of the candidates for the elective posts. Earlier these organizations were not responsible for such information, but now this is true only for the directly transmitted features. Yet, if such feature was recorded beforehand, then the organization is responsible for the contents of candidates speeches. So, now the TV and radio companies must censor and edit the recorded speeches in order not to violate the election laws. And how the candidate would react, if his appearance would be shortened? Moreover, the equality of the rights will be abused, since a candidate, who appears in direct transmission, will be able to say more than another candidate, whose speech will be recorded. The possibility will also appear to censor the speeches of opposition candidates.

It is noteworthy that the draft was not assessed negatively by the deputies. On the contrary, the authors of the draft took into account the propositions of MPs Yu. Kliuchkovskiy and M. Tomenko. At that, the changes concerning the temporary cancellation of the licenses were presented by Yu. Kliuchkovskiy, a deputy from the party “Our Ukraine”. Unfortunately, the deputies did not correct the obvious drawbacks of the draft, and this will undoubtedly influence the elucidation of elections and referendums by Ukrainian TV and radio companies.

It is also interesting that these legal changes do not concern printed mass media (for which a norm referring to the law on election was merely stipulated), but only electronic ones, and the attention to TV and radio, as we see, appeared to be excessive.

Naturally, all these drawbacks may be challenged in court, and we hope that electronic mass media will use this right. Let us wait until the next election campaign, and then we will observe the tendencies of applying these legal norms.

We also hope that the President will use his veto right and will return this law to the Supreme Rada together with his propositions.

Volodymir Yavorskiy, a lawyer of the Association of network TV and radio broadcasters of Ukraine, 16 May 2003, “Telekritika”